United States District Court, M.D. Florida, Orlando Division
ANTOON II UNITED STATES DISTRICT JUDGE.
Ward brings this action against his former employer, the City
of Holly Hill, alleging a single count for violation of
procedural due process in connection with the termination of
his employment as a city police officer. (Compl., Doc. 2).
The City moves to dismiss. (Mot., Doc. 5). As set forth
below, the motion is granted but Ward will be afforded an
opportunity to file an amended complaint.
"A pleading that states a claim for relief must contain
... a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
"'[D]etailed factual allegations'" are not
required, but "[a] pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do, '"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 555
(2007)). "To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Id. (quoting Twomblv, 550
U.S. at 570). In considering a motion to dismiss brought
under Federal Rule of Civil Procedure 12(b)(6), a court
limits its "consideration to the well-pleaded factual
allegations, documents central to or referenced in the
complaint, and matters judicially noticed." La
Grasta v. First Union Sec. Inc.. 358 F.3d 840, 845 (11th
"No direct cause of action under the Fourteenth
City first argues that Ward "has failed to state a claim
as there is no direct cause of action under the Fourteenth
Amendment" and "has failed to cite or refer to [42
U.S.C] § 1983 in any capacity." (Doc. 5 at 2-3).
Ward mentions this argument in his response, (see
Doc. 13 at 2), but he does not specifically argue against it.
Nevertheless, this argument is devoid of merit and must be
Supreme Court clarified in 2014, plaintiffs are not required
"to invoke 42 U.S.C. § 1983 in their
complaint." Johnson v. City of Shelby, 135
S.Ct. 346, 346 (2014). In Johnson, the Court
reversed the Fifth Circuit's affirmance of a district
court's dismissal-based on "failure to invoke 42
U.S.C. § 1983"-of a complaint alleging due process
violations under the Fourteenth Amendment. The Court noted
that federal pleading rules require "'a short and
plain statement of the claim showing that the pleader is
entitled to relief" but "do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted." ]g\ (quoting
Fed.R.Civ.P. 8(a)(2)). The Court made clear that "no
heightened pleading rule requires plaintiffs seeking damages
for violations of constitutional rights to invoke § 1983
expressly in order to state a claim." ]cL at 347.
the City's contention that Ward was required to
"invoke § 1983" to state a viable
constitutional claim is without merit. Dismissal of
Ward's claim is not warranted on this basis.
Procedural Due Process
alleges in the Complaint that he was hired by the City as a
police officer on June 2, 2013, and was terminated on October
10, 2013, "without any opportunity to respond to the
allegations against him." (Compl. ¶¶ 6 &
8). He asserts that his right to procedural due process under
the Fourteenth Amendment of the U.S. Constitution was
violated because he was not afforded a grievance procedure as
required by "Section 12 of the City of Holly Hill
Personnel Rules and Regulations." (Id. ¶
17). The City argues that Ward fails to state a procedural
due process claim because he had no property right in his
§ 1983 action alleging a procedural due process clause
violation [consists of] three elements: a deprivation of a
constitutionally-protected liberty or property interest;
state action; and constitutionally inadequate
process.'" Doe v. Florida Bar, 630 F.3d
1336, 1342 (11th Cir. 2011) (quoting Cryder v.
Oxendine. 24 F.3d 175, 177 (11th Cir. 1994)). Ward
alleges state action and constitutionally inadequate process,
but it is unclear from his filings what type of
constitutionally-protected interest he is asserting as a
basis for his procedural due process claim.
alleges that "as a United States citizen [he] is
afforded the constitutionally protected right to procedural
due process with respect to any grievance process related to
his public employment, " (Compl. ¶ 14), and he then
cites Section 12 of the City's Personnel Rules and
Regulations, (id ¶¶ 15 & 17). The City has
attached excerpts of its Personnel Rules and Regulations to
its motion to dismiss; those excerpts, which do not include
section 12, tend to show that Ward-who was employed by the
City for less than five months-was a probationary employee
and therefore was not entitled to the benefit of the
grievance policy. (Doc. 5-1 at 4). The City suggests in its
motion that Ward may have intended to cite Article 12 of the
Agreement between the Coastal Florida Police Benevolent
Association and the City rather than Article 12 of the
City's Personnel Policies and Procedures, (see
Mot. at 6 n.3), but the City asserts that even that Article
12 does not afford Ward a property interest in his
employment, (id. at 6).
response memorandum, Ward quotes a case regarding
"reputational damage" as a "deprivation of
liberty" and quotes the same case regarding
"deprivation of a protected interest." (Doc. 13 at
3 (quoting Cotton v. Jackson, 216 F.3d 1328, 1330-31
(11th Cir. 2000)). He does not, however, specify whether he
is asserting a liberty or property interest, nor does he
address whether he is still relying on Article 12 ...